Sina Khanifar

It's time for a real fix on phone unlocking and the DMCA

March 27, 2013

This morning we sent a letter to the heads of the House and Senate Judiciary Comittees asking them to pass a bill that permanently legalizes cell phone unlocking and calls for hearings on reforming of Section 1201 of the DMCA.

The letter is signed by over 30 technology companies and public policy organizations including Public Knowledge, the Electronic Frontier Foundation, Reddit, YCombinator, iFixit, The Internet Archive, the New York Tech Meetup and FixtheDMCA.org.

Why we’re sending the letter now

There have been three bills proposed in Congress since the White House joined over 110,000 petitioners in asking for unlocking to be legalized on March 4th. Unfortunately each of those bills falls short of a complete fix.

The most recent bill, proposed by the heads of the House and Senate judiciary committee, reverses the Librarian of Congress’s decision to remove the exemption for unlocking. But it does so only temporarily, until the Librarian’s next rulemaking in 2015. Since the Librarian’s exemptions only cover the “act” of unlocking, the software and tools required for unlocking phones would remain illegal if that bill is passed.

Public Knowledge published a simple chart showing exactly what each of the proposed bills so far does. We’re asking Congress to combine the three bills and enact a permanent exemption to the DMCA that legalizes both the act of unlocking and the tools it requires.

Why we’re asking for hearings on DMCA reform

Our letter also asks Congress to hold hearings on wider reforms to Section 1201 of the DMCA. That law was passed to prevent piracy, but instead hinders both innovation and artistic creativity by criminalizing any sort “circumvention,” even when there’s no copyright infringement.

Here are a few examples of how this causes problems:

The DMCA limits innovation and technological development

The “ban now, ask for exemptions later” approach of the DMCA makes it impossible to know what innovations we've missed out on in the 15 years since the DMCA was enacted. Innovators and investors are clearly discourage from devoting money and resources to projects that would put them at legal risk.

The DMCA limits our rights to modify and repair electronics

Lock-out codes are already used in cars to prevent access to diagnostic information and third-party repairs. The existing anti-circumvention mean that manufacturers of any sort of electronic device can implement a simple DRM systems and thereby discourage any modification and repairs using the legal protections of the DMCA. We're already seeing this with things like jailbreaking cellphones and game consoles in legal limbo due to the §1201 of the DMCA. Kyle Wiens, founder of iFixit and one of the signatories of the letter wrote about this in article for Wired here.

The DMCA prevents the work of security researchers

Section 1201 has been used to stifle free speech and scientific research.

Threats were sent by the RIAA Princeton Professor Edward Felten and his employers for his research into a music DRM system in 2000.

In 2005 Professor J Alex Halderman discovered a security flaw in Sony-BMG's "rootkit" copy-protection software that installed spyware and made left users liable to attack by third parties. He was unable to publish his results due to legal risks created by the DMCA

In 2005 HP threatened SNOsoft after they released software that demonstrated vulnerabilities in HP's Tru64 Operating System. HP had been aware of the vulnerabilities but had not bothered to fix them.

The DMCA limits documentary filmmakers and remix artists

For over a decade the DMCA undermined filmmakers' ability to make fair use of copyrighted materials in their films. Section 1201 prevented them from circumventing DRM systems to include footage from movies and TV in their films. The Librarian recently added an exemption for circumventing DVDs, but failed to add an exemption for Blu-Ray Discs and other forms of media such as streaming. Exemptions issued by the Librarian do not cover the tools required for circumvention. Remix artists, who rely upon altering the works of others to create art, are similarly affected.

The DMCA limits the work of archivists

Benj Edwards wrote eloquently on this subject for the Atlantic, noting that the DMCA "threatens to make archivists criminals if they try to preserve our society's arifacts for future generations."

The DMCA limits consumer's rights to legally backup and time/format shift their purchases

Consumers are affected indirectly by each of the above cases, but also more directly. Copyright law makes it legal for users to create backup copies of DVDs, video games and other content, but the DMCA prevents them from doing so. Once a blu-ray disc or DVD is scratched, there's no legal way for a user to recover their purchase. Place-shifting, time-shifting, and format-shifting are permitted by copyright law, but stifled by the DMCA's anti-circumvention rules.

This list is only partial: the DMCA also affects teachers and college professors by limiting their ability to use DRM-protected media for educational purposes, has been used to suffocate competition (for example by preventing the manufacture of third-party printer cartridges), and interferes with computer intrusion laws. You can more about about the law in the EFF’s Unintended Consequences and Public Knowledge’s DMCA Whitepaper.

The DMCA restricts one of Copyright’s most important provisions: fair use allows copyrighted material to be used for commentary, criticism, news reporting, teaching, library archiving and a host of other purposes. Congress needs to change the law and make non-infringing circumvention permanently legal.

Care about these issues? Take action

One thing I’ve heard from speaking with Congressional staffers is that people undervalue the effect that their voice can have on decision making in DC.

If you think the law should change, speak up. Contact your representatives now at FixtheDMCA.org.

And if you’re a developer and would like to help build the next version of our campaign site, please contact me.